On Friday, the Boston Criminal Lawyer Blog began describing things to consider when deciding on a defense attorney who will bring your case to trial. When we left off, I had been addressing those defense lawyers who, perhaps in an effort to combat perceived arrogance from the prosecution, approach the jury with an air of superiority.

I have met clients who feel that this is a good thing. After all, who wants a timid advocate arguing it was their client who was the true victim and only whacked the deceased with a hammer 21 times in self-defense after the client was assaulted first?

Similarly, many clients feel they want to retain an attorney who’s very persona screams “LAWYER!!!”.

While that may be great for a non-jury case which must be decided primarily on the law, perhaps on search and seizure grounds, it is generally not the right approach for a jury trial.

Think about it. Jurors are random people chosen to judge your case. They do not know you. They are supposed to be your peers, so they probably react to many things in a similar manner to you. Do you tend to trust attorneys? How about if you were sitting in the jurors’ seats? You may well be a fanatic like Nancy Grace who seems to feel that innocent people do not get charged with crimes.

Are you most likely to trust someone who reminds you every time they open their mouths that they are a paid mouthpiece who is simply there to “get their client off”?
I would suggest that you are better off with a trial lawyer who can talk like a human being. An educated human being one might respect, yes, but a human being nonetheless. Many people do not equate criminal defense lawyers with human beings.

You want the jury to feel like your attorney is one of them. That is the best way to get a jury to respond favorably to lawyers in my experience. It is more pursaisive. So, you want a lawyer who can speak English to a jury, not only Legalese.

And so, of the two most important elements to look into which I referred to on Friday, approaching the jury as a human being is one.

The other one is related. It is the ability and the knowledge to recognize that the other participants in the criminal justice system are human beings as well.

That’s right – judges, prosecutors , police officers and court officers are human beings. The court clerk is a human being. Do you know how many lawyers I have seen shoot themselves in the foot by treating a court officer or court clerk as if they were simply menial know-nothings who are lucky enough to share the same room with them? Big mistake.

Court officers and clerks have a great deal of power in the courtroom, second only to the judge. They are also professionals and like to be treated that way. Fail to do so and you have now alienated important participants in the matter from you. Not terribly wise.

Who do you think is likely to get more done in your favor between the attorney who is able to go in and have a meaningful conversation about the case with the prosecutor and the one who looks to bully the opposition so that no such conversation can occur?

“Why do I need my lawyer to talk to the prosecutor, Sam? The DA is just the slithering soul-less demon who wants to put everybody in jail, right?”

Well, that is how many defense attorneys seem to see prosecutors and police officers. Having been one of those slithering soul-less demons, and having spent a great deal of my time with them, I can tell you that it is not the case. Some are more reasonable than others. Some care more than others. However, whether or not you like them, they are human beings with their own motivations. Understand them and their motivations and figuring out where they will go next is much easier. The more your attorney an anticipate what the prosecution is going to do next, the better chance you have of keeping one step ahead.

Further, believe it or not, certain things can be handled and agreed to between the parties. This can also work to your benefit. Shutting off that possibility is to cut off a potential line of information and defense.

And, finally, the judge. Did you know that a judge does not trade in her soul in order to get one of those black robes? It’s true!

Being able to approach the judge like a human being, and not like G-d or an enemy is important. It makes it possible to reach beneath that robe and remind the judge that your lawyer is also a fellow human being (not simply one of those tricky scummy lawyers)…not to mention his client, The Defendant.

We have discussed many times the way other participants in the system often view one of Them.

These are all elements that one picks up only through experience. I am not a genius because I am aware of them and can do them automatically. I have simply paid attention.

Speaking of paying attention, realizing that the other participants (including adverse witnesses) are human beings reminds one that it is important to listen to them…not simply make the mistake of staying married to your script in questioning them.

What do you think is more likely to strike a chord with the jury – the lawyer who does not seem to hear the answers the witness is giving because he is married to the list of questions he wants to ask or the attorney who is able to listen to the witness and respond meaningfully…often taking advantage of unexpected nuggets that may fall out of the unwitting witness’ mouth?

I cannot tell you how many times unexpected statements from a witness have changed the course of a trial and led to victory. Miss them and you miss a real opportunity.

Again, these are things to look for in an experienced attorney. Does the prospective lawyer have the experience to know these things? Has the lawyer had the smarts to learn them? Does she have the talent to make the most out of them.

These are the often forgotten elements in choosing trial counsel which, in my opinion, are the most important. If you wish to consult with me on a matter, and want to see if I have them, please feel free to contact me at (617) 206-1942.

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